Take the Fifth

I report after each month on interesting statistics from the data I generate from the daily opinion summaries from the U.S. Court of Appeals for the Fifth Circuit, and at the end of each court year (Oct.-Sept.) I aggregate that–all of which provides useful insights into the inner workings of the Court, the relative success of various appeals, and more. The August 2026 statistics are based on 258 total opinions released by the Court (58 more than in July, and the highest monthly total of opinions released in three years, since the court released 280 decisions in August 2023):

Where the appeals are coming from

• In August 2026, no district court had a perfect affirmance rate, a fairly rare occurrence.
• The Northern District of Texas was the district with the most decisions originating from there in August, 60 total decisions. From the district, 55 of those were full affirmances or appeal dismissals; 1 was a grant of mandamus; 1 was a full vacatur; 2 were denials of motions or carrying them with the case; and 1 was an order granting a motion in part.
• From the Western District of Texas, 42 decisions were full affirmances/appeal dismissals; 3 were partial reversals/partial affirmances/vacaturs; 3 were full reversals; and 4 were full vacaturs.
• From the Southern District of Texas, 40 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 5 were full reversals; 1 was a grant of mandamus; 4 were full vacaturs; and 1 was an order partially granting a motion.
• From the Eastern District of Texas, 11 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 1 was a denial of a motion.
• From the Eastern District of Louisiana there were 14 full affirmances/appeal dismissals; 1 full reversal; 1 full vacatur; and 1 published denial of rehearing en banc.
• From the Middle District of Louisiana, there were 7 full affirmances/appeal dismissals; and 1 full reversal.
• From the Western District of Louisiana, there were 16 full affirmances/appeal dismissals; 1 order of mandamus; and 2 full vacaturs.
• From the Southern District of Mississippi, there were 7 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
• From the Northern District of Mississippi, there were 3 full affirmances/appeal dismissals; and 1 full reversal.
• On petitions for review of Board of Immigration Appeal, there were 15 denials/dismissals of petitions for review; and 1 grant.
• On petitions for review of other agency actions, there were 3 grants; and 1 denial.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 108 resulted in full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 4 full vacaturs; 1 published denial of en banc rehearing; and 1 grant-in-part of a motion. 108 of the dispositions favored the prosecution, and 10 favored the defendant.
• In immigration cases, there were 3 full affirmances; 2 denials of motions (or carrying with case); 15 denials of petitions to review BIA orders; and 1 grant of a petition for review. 20 dispositions favored the government, and 1 favored the immigrant.
• In prisoner suits, there were 9 full affirmances/appeal dismissals; 2 full vacaturs; and 1 denial of a motion or carrying with the case. 10 dispositions favored the government defendants; and 2 favored the prisoner plaintiff.
• In commercial – civil cases, there were 17 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 grants of mandamus; and 3 full vacaturs. 15 of the dispositions favored the defendant, and 9 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 16 full affirmances/appeal dismissals; 1 full reversal; and 1 grant of mandamus. 16 of the dispositions favored the defendant; and 2 favored the plaintiff.
• In employment/labor law cases, there were 8 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals/vacaturs. 8 of the dispositions favored an employer; and 2 favored employees.
• In qualified immunity cases, there were 10 full affirmances; and 5 full reversals. 12 dispositions favored the government defendant; and 3 favored the plaintiff.
• In bankruptcy cases, there were 6 full affirmances. 3 dispositions favored the creditor; and 3 disposition favored the debtor.
• In habeas corpus/other post-conviction-relief cases, there were 2 full affirmances/appeal dismissals; 2 full reversals; and 1 partial grant of a motion. 4 dispositions favored the government defendant; and 1 favored the petitioner.
• In personal torts cases, there were 4 full affirmances; 1 full reversal; and 1 full vacatur. 4 dispositions favored the defendant; and 2 favored the plaintiff.
• In arbitration cases, there was 1 full affirmance; and 1 partial affirmance/partial reversal/vacatur. Both dispositions favored the plaintiff.
• In voting/election law cases, there was 1 full vacatur. That 1 disposition favored the defendant.
• In tax law cases, there were 4 full affirmances; and 1 full vacatur. 4 dispositions favored the government; and 1 favored the taxpayer.
• In environmental law/toxic torts cases, there were 2 full vacaturs. 1 disposition favored the defendant; and 1 favored the plaintiff.
• In international law cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In maritime law cases, there was 1 full affirmance. That 1 disposition favored the plaintiff.
• In class action appeals, there was 1 full affirmance. That 1 disposition favored the plaintiff.

Importance of oral argument?

• In August 2026, there were 62 decisions resulting from orally argued cases: 41 were fully affirmed; 2 were only partially affirmed, but partially reversed or vacated; 6 were fully reversed; 6 were fully vacated; 1 was a denial of a petition for review of a BIA order; 1 was a denial of a petition for review of another agency order; 3 were grants of petitions for agency review; and 2 were denials of motions (or carrying them with the case). So, decisions in August from the orally argued cases resulted in a 71.67% full-affirmance rate, a good bit higher than other recent months (counting full affirmances and denials of petitions for review of agency orders, and not factoring in motion decisions). 42 of the August decisions from orally argued cases favored the defendant/state (civil defendants and state actors, including criminal prosecution); while 20 favored the plaintiff/non-state.
• In the 19 August decisions where oral argument was withdrawn after initially being granted, 9 resulted in full affirmances; 1 was only a partial affirmance; 3 were full reversals; 2 were full vacaturs; 3 were denials of petitions to review BIA orders; and 1 was a grant of a petition to review a BIA order; for a 63.16% full-affirmance rate for cases initially ordered for oral argument but then not orally argued, significantly lower than recent months. 9 of those oral-argument-withdrawn decisions favored the defendant/state; while 10 favored the plaintiff/non-state.
• In the 174 August decisions that were never ordered for oral argument, 146 were full affirmances; 4 were partial reversals; 3 were full reversals; 3 were orders of mandamus; 6 were fully vacated; 1 was a published denial of en banc rehearing; 11 were denials of petitions for review of BIA orders; 1 was a denial of a motion; and 2 were partial denials of motions; for a 92.4% full-affirmance rate (not counting motion denials in that calculation), only slightly lower than normal. 161 of the no-oral-argument decisions favored the defendant/state; and 15 favored the plaintiff/non-state.

How much law is being made?

• Of the 258 opinions released by the 5th Circuit in August 2026, 59 were designated for publication (like with many categories of statistics this month, that’s substantially higher than recent months). 29 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 1 was a grant of mandamus; 6 were full vacaturs; 1 was a published denial of en banc rehearing; 3 were denials of petitions for review of BIA orders; 1 was a grant of a petition for review of a BIA order; 1 was a denial of a petition for review of another agency order; 3 were grants of petitions for review of agency actions; 3 were denials of motions; and 1 was a partial grant of a motion.
• 199 of the August opinions were unpublished, including 167 full affirmances/appeal dismissals; 3 partial affirmance/partial reversal/vacatur; 6 full reversals; 2 grants of mandamus; 8 full vacaturs; 12 denials/dismissals of petitions to review BIA orders; and 1 partial grant of a motion.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in August? (This is by far a record since I’ve been keeping these statistics starting in September 2020: Judge Oldham, at 81). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (again, so many, and records shattering, so I won’t mention just one of the busy bees here: Judge Oldham, with 14; Judge Graves, with 11; and Judge Willett, with 10). Who concurred the most in separate opinions? (Judge Ho recapturing his title as king of concurrers, with 5). Who authored the most dissenting or dubitante opinions? (Judge Oldham, with 6, a far higher monthly dissent total than any judge in the past six years). How many opinions did the Court issue per curiam, with no author listed? (205, with 195 of those unpublished; but another record-breaking number of those designated “per curiam” decisions were not “true” per curia for the court, 16 of them, as they were accompanied by separate concurrences and/or dissents). Who participated in making the most law, participating in the most panels with published opinions? (Judge Oldham, with 23; followed by Judge Willett, with 20; and Judges Smith and Graves, with 19 each). We have all that below (senior-status judges in italics):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished
Elrod	34	33	5		2	13	22
Jones	27	27	1			8	19
Smith	50	50	4			19	31
Stewart	49	48	1			11	38
Richman	50	49	2			11	39
Southwick	38	38	4	1 (+1 w/o op.)		16	22
Haynes	40	38		1 (+3 w/o op.)	2	13	27
Graves	56	51	7	1 (+1 w/o op.)	3	19	37
Higginson	37	32	5	1	3	16	21
Willett	49	47	5	3	2	20	29
Ho	31	31	1	5		13	18
Duncan	45	44	2		1	12	33
Engelhardt	48	48	4			16	32
Oldham	81	74	4	4 (+2 w/o op.)	6 (+2 w/o op.)	23	58
Wilson	53	53	1	1		15	38
Douglas	41	39	2			14	27
Ramirez	48	46	1			14	34
Dist. Ct. Judge sitting by designation
King	22	20			2	7	15
Higginbotham	15	14	1		1	6	9
Davis	20	20					20
Wiener	11	11				3	8
Barksdale	5	5				1	4
Clement	25	25	2	1		5	20
Unattributed/ Clerk
per curiam			205 (16 not “true” per curia)			10	195

Conclusions? Most decisions in August, as always (though perhaps to a slightly lesser statistical extent), were unanimous, with 24 dissents and 25 concurrences out of 258 opinions. Among senior-status judges, Judges Clement, King, and Davis had the heaviest participation in panels. Meanwhile, among active-status judges, the lightest production in August (judges by participation on panels releasing opinions) was Judge Jones, with 27 (usually here I would note “not counting Chief Judge Elrod, who also carries a heavy administrative load,” but Chief Judge Elrod was on 34 panels releasing opinions in August).

Wrap it all together, and an opinion in August 2026 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Oldham, Graves, and Wilson on the panel.